State Of Washington v. Jessie D. Britain

• Court: Court of Appeals of Washington
• Decided: November 2, 2020
• Docket: 81830-9
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE STATE OF WASHINGTON, ) No. 81830-9-I ) Respondent, ) ) v. ) ) JESSE DEAN BRITAIN, ) UNPUBLISHED OPINION ) Appellant. ) )

VERELLEN, J. — An officer may conduct a traffic stop of a vehicle where

the officer has a reasonable articulable suspicion that a traffic infraction has

been committed. Under article I, section 7 of the Washington Constitution, the

scope and duration of a traffic stop are governed by the principles in Terry v.

Ohio.1 A traffic stop is not pretextual if the lawful reason for the stop is actual,

conscious, and independent from any unlawful reason. Because the officer had

a reasonable articulable suspicion that Jesse Britain committed a traffic

infraction, the stop was lawful. And after Britain threw a bag filled with

methamphetamine, the scope and duration of the stop properly expanded so

the officer could investigate the criminal activity.

1 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). No. 81830-9-I/2

Britain contends his counsel was ineffective for failing to challenge the

search of the methamphetamine bag as an unlawful search incident to arrest.

But even assuming his counsel deficiently failed to dispute a search incident to

arrest theory, he fails to establish a reasonable probability that the State could

not have prevailed on viable alternative theories of open view or voluntary

abandonment.

Therefore, we affirm.

FACTS

One evening, Yelm Police Department Officer Christopher Davis was

patrolling Green Acres Lane, a high crime residential area. On patrol, Officer

Davis noticed Jesse Britain’s motorcycle because there was a piece of paper

covering the license plate.

Officer Davis initiated a stop of the motorcycle for a traffic infraction and

asked Britain for his license and registration. Britain did not provide Officer

Davis the requested documents, but he verbally identified himself.

On his way back to his patrol vehicle to conduct a records check, Officer

Davis removed the paper covering Britain’s motorcycle license plate, then he

saw and heard Britain throw something. Officer Davis turned around and asked

Britain what he had thrown. Britain responded that he threw a knife.

Concerned for his safety, Officer Davis handcuffed Britain, called other

officers, frisked him, and placed him in his patrol vehicle. After the other

officers arrived, Officer Davis investigated the object Britain had thrown. Fifteen

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feet from the road, he found a large open Crown Royal bag with white crystals

in view. Officer Davis conducted a records check and discovered that Britain’s

license was suspended and that he was only permitted to drive vehicles with an

ignition interlock device. The motorcycle lacked any interlock device. Officer

Davis arrested Britain. The officer then searched the bag and found just under

a pound of methamphetamine, small “baggies,” and a digital scale.

Britain was charged with possession of methamphetamine with intent to

deliver, operating a motor vehicle without an ignition interlock device, and

driving with a suspended license. Britain filed a motion to suppress, which the

trial court denied. The court conducted a stipulated bench trial.

Britain appeals.

ANALYSIS

I. Traffic Stop

Britain argues that Officer Davis’s traffic stop violated article I, section 7

of the Washington Constitution.

Challenged findings of fact entered after a suppression hearing that are

supported by substantial evidence are binding, and unchallenged findings are

verities on appeal.2 “Our review is limited to determining whether substantial

evidence supports the challenged findings of fact and, in turn, if the supported

findings and unchallenged findings support the court’s conclusions of law.”3 A

2 State v. O’Neil, 148 Wn.2d 564, 571, 62 P.3d 489 (2003). 3 State v. Coleman, 6 Wn. App. 2d 507, 516, 431 P.3d 514 (2018).

3 No. 81830-9-I/4

finding of fact is supported by substantial evidence when the record shows

sufficient facts to persuade a fair-minded person of the truth of the finding.4

We review conclusions of law de novo.5

Article I, section 7 of the Washington Constitution “protects the ‘private

affairs’ of each person from disturbance imposed without ‘authority of law.’”6 A

lawful Terry stop is “‘limited in scope and duration to fulfilling the investigative

purpose of the stop.’”7 An officer’s actions will be viewed under the totality of

the circumstances to determine if the Terry stop was reasonable in scope and

duration.8 Warrantless traffic stops are allowed under the Washington

Constitution, “but only if based upon at least a reasonable articulable suspicion

of either criminal activity or a traffic infraction.”9

A reasonable articulable suspicion exists where an officer’s suspicion is

“based on specific [and] objective facts.”10 “But a police officer cannot and

4 State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). 5State v. Homan, 181 Wn.2d 102, 106, 330 P.3d 182 (2014) (citing State v. Gatewood, 163 Wn.2d 534, 539, 182 P.3d 426 (2008)). 6 State v. Arreola, 176 Wn.2d 284, 291, 290 P.3d 983 (2012) (quoting WASH. CONST. art. I, § 7). 7State v. Lee, 7 Wn. App. 2d 692, 702, 435 P.3d 847, review denied, 194 Wn.2d 1002, 451 P.3d 323 (2019) (quoting State v. Acrey, 148 Wn.2d 738, 747, 64 P.3d 594 (2003)). 8 Id. (quoting State v. Flores, 186 Wn.2d 506, 525 n.8, 379 P.3d 104 (2016)). 9 Arreola, 176 Wn.2d at 292-93 (citations omitted). 10State v. Duncan, 146 Wn.2d 166, 172, 43 P.3d 513 (2002) (citing Terry, 392 U.S. at 21).

4 No. 81830-9-I/5

should not be expected to simply ignore the fact that an appropriate and

reasonably necessary traffic stop might also advance a related and more

important police investigation.”11

The only finding of fact challenged by Britain is finding of fact 7, that

“Officer Davis initiated the traffic stop solely due to the obstructed license plate

on the motorcycle. . . . [T]here was no other reason Officer Davis pulled Mr.

Britain over.”12

Officer Davis testified that he noticed Britain’s motorcycle because there

was something covering the license plate. He testified that “it was not clearly a

license plate, [there was a] piece of paper” covering it. 13 He further testified that

as he drove closer to the motorcycle, he was still unable to read the license

plate. And Officer Davis testified that he “decided to pull the vehicle over for the

obstructed license plate.”14 Substantial evidence supports finding of fact 7.

And finding of fact 7 supports conclusion of law 2 that Britain was stopped only

for violating RCW 46.16A.200.

Britain challenges conclusion of law 3, that “the initial traffic stop . . . was

supported by a reasonable and articulable suspicion.”15

11 Arreola, 176 Wn.2d at 299. 12 Clerk’s Papers (CP) at 34. 13 Report of Proceedings (RP) (Jan. 7, 2019) at 15. 14 Id. at 16. 15 CP at 36.

5 No. 81830-9-I/6

Officer Davis testified that when he was behind Britain’s motorcycle, he

“didn’t know” what was covering Britain’s license plate because the “paper was

folded behind” and it “was unable to be read from a distance [Officer Davis] was

at.”16 Because Officer Davis was unable to read Britain’s license plate, he had

a reasonable articulable suspicion that Britain committed a traffic infraction

based on specific and objective facts.

Britain challenges conclusion of law 6, that “the scope and length of the

initial stop to investigate the license plate issue were lawful [and] Officer Davis’

detention of Britain after throwing the object . . . justified extension of the

duration of the detention and . . . the scope of the officer’s investigation.”17

Officer Davis initiated a stop because Britain committed a traffic

infraction. After collecting Britain’s information, Officer Davis inspected the

paper covering Britain’s license plate. He then “saw Britain make a very quick,

subtle movement to his right.”18 It is undisputed that the officer “observed Mr.

Britain make a throwing motion and heard a loud thud of something hitting a

fence in the immediate area of the traffic stop.”19 Britain told Officer Davis he

threw a knife. Officer Davis was concerned for his safety. He testified that he

“didn’t know if [Britain] had firearms on him or any more weapons or knives.” 20

16 RP (Jan. 7, 2019) at 15, 24. 17 CP at 37. 18 RP (Jan. 7, 2019) at 25. 19 CP at 35 (finding of fact 10). 20 RP (Jan. 7, 2019) at 28.

6 No. 81830-9-I/7

Because Officer Davis’s lawful traffic stop led to a reasonable investigation of

further possible criminal activity based on Britain’s conduct, the scope of the

initial stop was properly expanded.

Britain argues that Officer Davis initiated the traffic stop solely to

investigate the validity of his trip permit. But the record does not support

Britain’s assertion. As discussed, the stop was made because the license plate

was obstructed. Because Britain fails to offer compelling evidence to support

his contention, we reject his argument.

Finally, Britain contends that, contrary to the trial court’s conclusion,

Officer Davis’ traffic stop was a pretextual stop in violation of article I, section 7

of the Washington Constitution. In a pretextual traffic stop, an officer “has not

properly determined that the stop is reasonably necessary . . . to address [the]

traffic infractions for which the officer has a reasonable articulable suspicion;

instead, the traffic stop is desired because of some other reason . . . such as a

mere hunch regarding other criminal activity.”21 A traffic stop is not

unconstitutionally pretextual if the “investigation of either criminal activity or a

traffic infraction . . . for which the officer has a reasonable articulable suspicion,

is an actual, conscious, and [an] independent cause of the traffic stop.”22

21 Arreola, 176 Wn.2d at 295-96. 22 Id. at 297.

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Here, Officer Davis testified that he patrolled Green Acres Lane because

it was a “high crime area.”23 Officer Davis did not know or recognize Britain.

He also testified that the sole reason he stopped Britain’s motorcycle was for

violating the license plate statute. Because Officer Davis remained “conscious”

of the “high crime area” he was patrolling but stopped Britain for a traffic

infraction, Officer Davis’s stop was not pretextual.

II. Ineffective Assistance of Counsel

Britain contends that the search of the methamphetamine bag was an

unlawful search incident to arrest, so defense counsel was ineffective for not

presenting this argument at the hearing on his motion to suppress.

We review a claim of ineffective assistance of counsel de novo.24 To

succeed on a claim of ineffective assistance of counsel, a defendant must prove

that his counsel’s performance was deficient and prejudiced his case.25 If

defense counsel’s decisions “can be characterized as legitimate trial strategy or

tactics, performance is not deficient.”26 Prejudice requires a showing of a

reasonable probability that the outcome would have been different but for the

deficient performance.27 We “should not hesitate to explore alternative theories

23 RP (Jan. 7, 2019) at 10. 24 State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). 25State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). 26 State v. Kyllo, 166 Wn.2d 856, 863, 215 P.3d 177 (2009). 27 Id. at 862.

8 No. 81830-9-I/9

to support a trial court’s decision,”28 and where an alternative theory exists, a

defendant has no basis for a claim of ineffective assistance of counsel. 29

Britain fails to establish deficient performance. The defense’s motion to

suppress, the State’s response, the oral argument, and the court’s oral opinion

were all focused on whether there was a valid stop and whether there was a

pretext for the stop. It was only in written conclusion of law 7 that the court

concluded Britain’s arrest was valid and the search of the contents of the Crown

Royal bag was a lawful search incident to arrest. The court separately

concluded that Britain’s claim that the object he threw was a knife justified the

expansion of the officer’s investigation, and that investigation led to the

discovery of the suspected methamphetamine bag. A defense counsel’s

determination to focus a motion to suppress on one particular search and

seizure issue can be a legitimate tactical decision.30 Britain does not establish it

was deficient performance to focus the motion to suppress on the validity of the

stop and whether the stop was a pretext.

And even if the facts here might not support the time of arrest rule,

authorizing seizure of objects in actual possession of the defendant “at or

28 State v. Burgess, 43 Wn. App. 253, 261, 716 P.2d 948 (1986). 29See State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995) (“The burden is on a defendant alleging ineffective assistance of counsel to show deficient representation based on the record established in the proceedings below.”). 30 Id. at 336-37.

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immediately preceding the time of arrest,”31 we should consider alternative

theories. If Britain had challenged the lawfulness of any search incident to

arrest, the State would have had the opportunity to present alternative theories.

In order to establish prejudice, Britain must show a reasonable probability that

those alternatives would not have been successful.

One of the exceptions to the warrant requirement is voluntarily

abandoned property. “[W]here a defendant abandoned property and that

property was subsequently searched, the defendant may assert a

constitutionally protected privacy interest only upon a showing that he or she

involuntarily abandoned the property in response to illegal police conduct.”32

Tossing a package containing drugs into a bush with an officer nearby is a form

of voluntary abandonment.33

Another exception to the warrant requirement is the open view doctrine.

“Under the ‘open view’ doctrine . . . ‘it is fair to say that when a law enforcement

officer is able to detect something by utilization of one or more of his senses

while lawfully present at the vantage point where those senses are used, that

detection is not a search.’”34 The object “under observation” is not subject to

31 State v. Brock, 184 Wn.2d 148, 154-55, 355 P.3d 1118 (2015) (citing State v. Byrd, 178 Wn.2d 611, 616, 310 P.3d 793 (2013)). 32 State v. Reynolds, 144 Wn.2d 282, 288, 27 P.3d 200 (2001) (emphasis omitted). 33State v. Young, 86 Wn. App. 194, 200-01, 935 P.2d 1372 (1997), affirmed, 135 Wn.2d 498 (1998). 34 State v. Rose, 128 Wn.2d 388, 392, 909 P.2d 280 (1996) (quoting State v. Young, 123 Wn.2d 173, 182, 867 P.2d 593 (1994)).

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any reasonable expectation of privacy, and thus, if the object is not in a

constitutionally protected area, a subsequent search of that item is

constitutional.35

As discussed, Officer Davis lawfully stopped Britain for a traffic infraction.

It is undisputed that on his way back to his patrol vehicle, he saw Britain “make

a throwing motion and heard a loud thud of something hitting a fence in the

immediate area of the traffic stop.”36 Britain told Officer Davis he threw a knife.

Concerned for his own safety and the safety of others, Officer Davis detained

Britain. At this point, Officer Davis’s traffic stop of Britain’s motorcycle

expanded and permitted Officer Davis to investigate the alleged knife Britain

had thrown. After the other officers arrived, Officer Davis “went to where [he]

saw the object hit the ground” and discovered the open bag of

methamphetamine.37 Officer Davis found the methamphetamine bag against a

fence approximately 15 feet from the road, not a constitutionally protected area.

Officer Davis lawfully stopped Britain, and could see “the white crystal

substance contained in the open bag.”38

35Id. at 392, 401-02; see also State v. Gibson, 152 Wn. App. 945, 955- 56, 219 P.3d 964 (2009). 36 CP at 35 (finding of fact 10). 37 RP (Jan. 7, 2019) at 29. 38 CP at 35 (finding of fact 13).

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Britain does not establish a reasonable probability that the alternative

theories of voluntary abandonment or open view would fail. He does not

establish the prejudice required to support his ineffective assistance theory.

WE CONCUR: